United States District Court, S.D. New York
ORDER OF DISMISSAL
COLLEEN MCMAHON, CHIEF UNITED STATES DISTRICT JUDGE:
order dated October 15, 2019, the Court noted that Plaintiff,
who appears pro se, is barred under the Prison
Litigation Reform Act (“PLRA”), 28 U.S.C. §
1915(g), from filing any federal civil action in forma
pauperis (“IFP”) while he is a prisoner. It
also noted that Plaintiff filed his present complaint while
he was held in the North Infirmary Command
(“NIC”) on Rikers Island and that he seeks to
proceed IFP. The Court directed Plaintiff to show cause why
the Court should not deny his amended IFP application and
dismiss this action without prejudice under § 1915(g).
Court received Plaintiff's responses on November 12 and
15, and December 10, 2019. (ECF 7, 8, 9.) For the reasons
discussed below, the Court denies Plaintiff's amended IFP
application and dismisses this action without prejudice to
Plaintiff's paying the requisite $400.00 in fees to bring
this action within 30 days of the date of this order.
adopted the [PLRA] with the principal purpose of deterring
frivolous prisoner lawsuits and appeals.” Nicholas
v. Tucker, 114 F.3d 17, 19 (2d Cir 1997). To serve this
deterrent purpose, the PLRA includes the following
In no event shall a prisoner bring a civil action [IFP] if
the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
or appeal in a court of the United States that was dismissed
on the grounds that it is frivolous, malicious, or fails to
state a claim upon which relief may be granted, unless the
prisoner is under imminent danger of serious physical injury.
§ 1915(g). The three-strikes provision was intended to
“give district courts greater power to protect their
dockets from meritless lawsuits.” Harris v. City of
New York, 607 F.3d 18, 23 (2d Cir. 2010). It is for this
reason that courts are entitled to raise any three-strikes
issue on their own motion. Id.; Thompson v.
DEA, 492 F.3d 428, 435-36 (D.C. Cir. 2007) (holding that
“once such evidence [showing the grounds for previous
dismissals] has been produced, the ultimate burden of
persuasion shifts back to the prisoner to explain why the
past dismissals should not count as strikes”);
Andrews v. King, 398 F.3d 1113, 1120 (9th Cir. 2005)
(“[O]nce a prisoner has been placed on notice of the
potential disqualification under § 1915(g) by either the
district court or the defendant, the prisoner bears the
ultimate burden of persuading the court that § 1915(g)
does not preclude IFP status.”).
determining whether previous dismissals count as strikes, the
Court does not “have an affirmative obligation to
examine actual orders of dismissal.” Harris,
607 F.2d at 23 (citing Thompson, 492 F.3d at 434-35;
Andrews, 398 F.3d at 1120), but may instead
“rely on the relevant docket sheets if they indicate
with sufficient clarity that the prior suits were dismissed
on the grounds that they were frivolous, malicious, or failed
to state a claim upon which relief may be granted, ”
id. at 23-24.
Court, as well and the United States District Court for the
Eastern District of New Yo r k, have previously recognized
Plaintiff as disqualified from proceeding IFP under the
PLRA's three-strikes provision. See Gibson v.
Comm'r of NYC Corr., ECF 1:17-CV-0318, 3 (S.D.N.Y.
Jan 17, 2017), at 1 (citing Gibson v. Weiss, No.
01-CV-8382 (E.D.N.Y. Apr. 30, 2002), appeal
dismissed, No. 02-0139-pr (2d Cir. Sept. 24, 2004), and
Gibson v. Vega, No. 01-CV-8379 (E.D.N.Y. Apr. 30,
2002), appeal dismissed, No. 02-0156-pr (2d May Cir.
May 9, 2005)).
of those actions, Plaintiff had an opportunity to argue that
he did not have three strikes, cf. Harris, 607 F.3d
at 24 (noting that the plaintiff had a full opportunity to
demonstrate to the district court that previous dismissals
were not strikes), and, if he was not satisfied with the
district court's resolution, to appeal the issue. He has
also had an opportunity in the present action to argue that
he does not have three strikes, and he has filed three
responses that fail to do so. (See ECF 7, 8, 9.)
abundance of caution, however, the Court will ensure that
Plaintiff earned at least three strikes before he mailed the
present complaint from the NIC in November 2018. See
Escalera v. Samaritan Vill., 938 F.3d 380, 381-84 (2d
Cir. 2019) (where the district court relied on a previous
order that concluded that the plaintiff had already accrued
five strikes, reversing and remanding after determining,
based on the language of the dismissal orders themselves,
that three of the dismissals should not have been counted as
on its review, the Court has determined that Plaintiff earned
at least three strikes before filing the present
action. Those strikes include:
1. Gibson v. Rice, ECF 1:94-CV-6431 (S.D.N.Y. Sept.
7, 1994): dismissed as frivolous under former 28 U.S.C.
2. Gibson v. Martines, ECF 1:98-CV-7100 (S.D.N.Y.
Oct. 8, 1998): dismissed as frivolous under 28 U.S.C. ...